explaining that although members of the public are familiar with hospital entrances, it does not mean it is within their common knowledge to determine whether the emergency room entrance at issue was safe
How later courts described this case
- explaining that although members of the public are familiar with hospital entrances, it does not mean it is within their common knowledge to determine whether the emergency room entrance at issue was safe
- noting the common view that there is no duty when a danger is open and obvious because “the basis for placing a duty on the land possessor—his superior knowledge—does not exist”
- affirming a trial court’s decision to allow a safety engineer’s testimony on OSHA regulations for emergency room entrances after a paramedic tripped at a hospital
- "By concluding that a danger was open and obvious, we can conclude that the invitee was negligent for falling victim to it, unless for some reason `to a reasonable man in his position the advantages of [encountering the danger] would outweigh the apparent risk.' But this does not necessarily mean that the land possessor was not also negligent for failing to fix an unreasonable danger in the first place. Under our rule of comparative fault, the defendant should be held responsible for his own negligence, if any."
Written by the judges who cited it.
Distinguished
Distinguished by Garrity v. Wal-Mart Stores East, Ltd. Partnership, 288 F.R.D. 395 (2012)
Wal-Mart claims that McIntosh is inapplicable to eases involving natural outdoor hazards.
Distinguished by Lucas v. Gateway Community Services Organization, Inc., 2011 Ky. App. LEXIS 108 (2011)
On the other hand, Gateway and Stacey assert that McIntosh is distinguishable from the matter at hand because there was no distraction so as to make Lucas’s injury foreseeable.
Distinguished by Lucas v. GATEWAY COMMUNITY SERVICES ORG, INC., 343 S.W.3d 341 (2011)
On the other hand, Gateway and Stacey assert that McIntosh is distinguishable from the matter at hand because there was no distraction so as to make Lucas's injury foreseeable.
The opinion
SCHRODER, J.,
dissenting:
Because I believe the open and obvious doctrine concerns a question of duty, I respectfully dissent. The other hospitals McIntosh served had no curbs to trip over. Appellants had a curb, which contained no building code or OSHA violations, and was open and obvious. It appears the Appellants are being held liable for a breach of a duty: a duty to build its emergency entrance like other hospitals in an undefined area. Until this decision, there was no such duty. Until today, a landowner or possessor of land could not be held liable to invitees who were injured by open and obvious dangers. Now, even though the alleged danger is open and obvious (like snow or ice on a sidewalk), if the possessor can anticipate the harm to an invitee, the possessor has a duty to fix the condition, or to somehow give additional warnings. In this case, to avoid future liability, the hospital will need to build the same type of entrance ramp as some unknown group of hospitals. This is an unwise and unneces-saiy change in the law in the Commonwealth.
SCOTT, J., joins.